WARDEN'S COURT.

Kumara Times, Issue 1537, 31 August 1881, Page 2

WARDEN'S COURT.

Monday, August 29. [Before H. A. Stratford, Esq., Warden.J The Court opeued at 8 p.m. Edward Halpin and party.—Application for a water-race at Greenstone.— Granted. Alexander Campbell and party applied for protection of their claim at Dillman's Town.—Granted for 28 days. alleged encroachment. In this case Peter M'Mahon, John Corrigan, James Connihy, and Martin Flanagan, plaintiffs, sued Duncan Fisher, Timothy O'Brien, Jeremiah M'Cartby, and Thomas Quinlivan, defendants, for—1. That the defendants are the holders of a certain double area certificate No. 18690, whereby they purport to hold certain land or claim situate at Cape Terrace. 2. That the defendants did not take and maintain possession of such land or claim in such manner, and with such boundaries and marks as directed by the " Mines Act, 1577," and th« Regulations made thereunder. 3. That the defendants are not entitled to the exclusive occupation of such land or claim.

4. That (he certificate representing such claim had been obtained by misreprcsentMtion.

Wherefore plaintiff* pray that certificate 18690 be cancelled, and the plaintiffs put in possession of so much of said land as they require to complete their ordinary claim of four men's ground, or such other oider be made hesviii as the GV-urt nuiv deem fit.

Mr Perkins appeared for the plaintiffs ; Mr A. Pi. Guinness for the defendants.

Counsel for defendants desired that the 4tli couut be amended ; and pleaded

a general denial of Ist, 2nd, and 3rd counts. Mr Perkins quoted sections 15 and 16 of the Mine 3 Act id support of the retention of the 4th count, aud also rule 3. He produced the four plaintiffs' miners' rights, all current, and asked for the production of defendants certificate for double area (18690). The ce: tificate was, with consent of defendants, produced ; it was dated the 27th June, 1881. The following witnesses were called : Duncan Fisher, sworn, said : I am one of the defendants in this case. I am working with O'Brien and party at Cape Terrace. lam holding a double area under the certificate which has been placed in Court. We applied for this on the 2nd of June in this year. We all helped to mark out our claim. We put in six pegs to hold the ground; I saw them all put in. We trenched the pegs. The trench at the N.W. corner was about five feet in length, at any rate over four feet ; I had no rule or tape to measure it; it was cut with an axe, a pick, and a shovel, and was six inches deep. We did this on the 2nd of June. The S.W. trench was made in a similar manner; the S.E. the same, and over four inches deep j at the N.E. corner the same. Between the N. E. corner and the N.W. corner there were two intermediate coiner pegs, trenched in the same manner. We treuched the claim again on the 25th July, because the trenches were partly filled up by people walking over them.

James Connihy, sworn, said! I know the defendants' claim at Cape Terrace. I was not present when the claim was marked out, but I saw the pegs ou the 3rd or 4th June in this year. I hold an adjoining claim. At the N.W. peg there was only a scratch for a trench, not exceeding a foot long; it could have been made with the hand or the heel of one's boot; it was not three inches deep. The S.E. peg had a trench a foot or fifteen inches long ; it might have been done with some tool. The trench at the N.E. peg was 18in. long, and the depth two or three inches. Between the N.E. and N.W. pegs, there were two intermediate corner ppgs. There was a trench at one of them two feet long, the only trench there. There were present Martin Flanagan, Denis Hannan, and living. There was uo appearance of the trenches having been cut and filled in. I saw defendants trenching the claim properly on the 25 th July, the day before the summons. It was trencded properly as to size, but not as to direction ; the angles are oat at the N.E; and S.W. corners. On the 25th July, O'Brien remarked that some one was trying to take advantage of his trenching. We are applying for four men's ground j we have barely three men's ground. We want 120 ft. by 111 ft. at the N,W, end of defendants' claim, to make up our complement. Cross-examined by Mr Guinness : Some of the ground was wet. A trench an inch wide and six inches deep would soon fill up. On the 25th July, on a Monday, I asked M'Carthy where his pegs were; this was between 11 a.m, aud 1 p.m. I have no doubt the five pegs I saw were the same pegs I saw originally. I saw five of the- pegs on the 3rd June, and six on the 25th July. I saw the pegs continually. I measured the trenches on the 22nd July. Defendants' ground had been worked and abandoned.

Denis Hannan, sworn, stated : I am an hotel-keeper, residing at Knmara. I was at Qape Terrace on the 22nd July. Defendants did not show me their pegs. I did not see defendants working. I measured the trenches to the pegs now in dispute; about 12in. long, not more. I do not say defendants' trenches were measured. Between the N.E. and N.W. pegs there were no trenches to the two corner pegs. I was on this claim last Saturday—what was pointed out as defendants' claim. The peg had then been fully trenched, but not at right angles. The one at the N.E. corner was out 25 degrees, the one at the S.W. was out 35 degrees. Cross examined : I only know what plaintiffs call defendants' claim by what they shewed and told me, none of the defendants being present. Peter M'Mahon, sworn, said : I am one of the plaintiffs in this case. M'Carthy, one of the defendants, shewed me the six pegs on defendants' claim, on the 26th July, after they had been newly trenched. J know the pegs were in the same place as when they first applied for a double area, in June. I showed Mr Hannan the pegs that M'Carthy showed me. The six pegs were not trenched in June, only four of them. The S.E. peg had a small trench in June, a foot to 15 inches long, and three to four inches deep. At the N.E. corner there was a trench 18 inches long and two inche3 deep. There was no trench at the peg next the N.E.

corner; but there was a trench 15 to 18 inches long at the peg next the N.W. corner. No trench exceeded three feet in length. The trench at the N.E. dorner was shooting fight across the claim. Oross-examined \ It was on the 26th July that I was there. The four original pegs have not been shifted sincd they first took up the claim, which was in May, I think. Three pegs were alongside dur claim. I never measured defendants' trenches. Martin Flanagan, sworn, said : I airi one of the plaintiffs irt this case. I know defendants' double area claim; Since the 3rd or 4th June I have seen pegs there—the N.W., the N.E., and two intermediate pegs. I passed by them on a track. I never heard any of the defendants claim any of these" pegs ; but I saw Fisher and O'Brien trench them. The N\Ws peg had a trench 10in. long before Fisher trenched it properly, with a depth of an inch or) two. On the 3rd June it was not properly trenched at the N.E. corner. It was 13 inches long, and three or four inches deep; There was no trench afc No. 1 corner, but at No. 2 the trench was 18 inches long and five inched deep. On the 22nd July I saw these" trenches measured with a rule and tape* line.

Cross-examined: Our double ared was cancelled on the 25th July. Fishetf and O'Brien trenched it properly oil that day. John Corrigan, sworn, said i I know" defendants' double area. I saw the N.W. and No. 2 peg pnt in by Fisher" and Quinlivan on the 2nd June. - The trench at the N.W. peg was a foot long and at No. 2 peg 18in. long, and fcween 2in. and 4in. deep. Neither of the trenches were over three feet. The pegs are now in the same place. These pegs were trenched properly to my knowledge on the 27th July. I measured defendants' double area. The pegs I saw last Saturday were in the same place that I saw them on the 2nd June. The N.E. peg was not five fee 6 long, even though Duncan Fisher sword to it.

Cross-examined i I aaw five pegs in June. The ground is clear. I wen 6 purposely to gee these pegs. I did not see the trenches or scratches Cut in June.

By the Court: The angle of the N.E. trench points into the claim 25 degrees from the supposed boundary at the S.W. peg. The trench would be 35 degrees inwards from the boundary.

For the Mr Guinness called Timothy O'Brien, who* being swornj said ; On the 2nd June last I marked out a' double-area claim with six pegSj and trenched each peg with five feet trenches with a depth of six inches, and have occasionally cleared them out. I never measured them Until the 25th July, before the summons was served. Cross-examined by Mr Perkins: I swear the N.E. trench was about five* feet, and over four feet. I did not put in the N.E. peg. I will swear therd was a trench at ea.ch of the six pegs, but will not say whether J put the peg in myself - s all the party were present; The pegs were two inches through, and more than two feet high. I saw No. 1 peg to-day* We used a pick, shovel, and axe. I put the N*E. trench, if the sketch ia correct. No. 1 trench was cut by Fisher and Quinlivan. We cleared out the trenches on the 25 th July. We measufed after we cut them, as there may have 1 been a littld doubt.

i Jeremiah M'Carthy, sworn, said:. I marked out a double-area claim on the 2nd June last. The pegs were three feet long and about two inches thick, I think. I believe the trenches were five feet long and six inches deep. There" is some traffic about there, at the north end of the claim. I cleared out the trenches iu June. On the 25th July we cleared the trenches out. Fishe? and O'Brien did it. The trenches were more thau iivo feet long, and were 12 inches deep. I think the angles indicated the working. Cross-examined: On the 26th July I showed the marks of our claim to complainants. I will swear there was a trench more tham four feet long at the N.E. peg, also at the two intermediate pegs. I saw these trenches as soon as they were cut. When my mates said that we had better look after the claim, I said the trenches were all right; and I swear they were the proper length and depth, to the best of my belief. ,; Thomas Quinlivan, sworn, said: t am one of the defendants in this case. I was a wages man in the double area\ On the 2nd of June I assisted to mark it. The pegs appeared to be the regulation height. There were six pegs. The trenches were proper, and T think they were five feet—some more' than five feet, and some might have been less. The depth of the trenches was five to sis inches. The trenches were

Cleared out in the latter end of June; tbey were interfered with by traffic; the ground was soft. Even to-day some of the trenches were partly filled up. On the 25th July the trenches were over five feet long, as they were Ihen cleared out again. Cross-examined: The N.W. peg would not have been five feet long, because there was a log, in which we cut ia notch. Every trench was over four inches deep—l believe five inches deep. On the Bth or 9th June I showed four pegs to Mitchell. On the 25th July we cleaned out the trenches. James Porter, sworn* stated: I atn a ■surveyor, residing at Kunaara. The defendant O'Brien showed me the six pegs of his claim at Cape Terrace, also the trenches, the angles of which pointed tout the boundaries of the claim. I surveyed the claim last Thursday. Cross-examined: The angle at the S.W. corner was not 25 degrees out. The angle of the trench at the N.E. Corner was nearly correct with the boundary lines. That angle will not lie 25 degrees out of the boundary line. C»sar Mitchell, sworn, said : I am a miner, living at Cape Terrace. I know O'Brien and party's claim. I remember notices being posted up for a double "area, One of the defendants showed me their pegs \ I saw the trenches to these pegs; they Were close to five feet In length, if not quite so, and the depth was five to six iuches. William Ryan, sworn, said : I saw O'Brien's notices for a double area in {Tune last. I saw the pegs on the S.W. boundary. I demanded to see these pegs on the 21st June. Their trenches were, I think, five feet long, because I Cat mine accordingly, and measured ray trench with a long-handled shovel. Patrick Tansey, sworn, said : I know the defendants' claim. The surface ground is soft; The wet weather is liable to obliterate the trenches. I know one peg of their claim since the application was posted for the claim. I have known this peg because O'Brien showed it to me [peg No. 2 on the sketch]; that peg had a trench ; T. imagine it was over four feet; I will not swear it was five feet; I did not raeasme it. I cannot say what the depth Df the trench was] it was not more four inches perhaps. This closed the case for the defence. The Warden reserved judgment till 9 a.m. on Tuesday next, the 6th September;